Citation Nr: 0934095
Decision Date: 09/11/09 Archive Date: 09/17/09
DOCKET NO. 08-01 727 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in North
Little Rock, Arkansas
THE ISSUES
1. Entitlement to a rating in excess of 30 percent for
pseudofolliculitis barbae with cystic acne vulgaris for the
period from July 11, 2000, to August 29, 2002.
2. Entitlement to a rating in excess of 60 percent for
pseudofolliculitis barbae with cystic acne vulgaris for the
period from August 23, 2002, to March 31, 2007.
3. Entitlement to a rating in excess of 30 percent for
pseudofolliculitis barbae with cystic acne vulgaris for the
period beginning April 1, 2007, to include restoration of a
60 percent rating.
4. Entitlement to an initial ten percent rating for
bilateral eye infections for the period from July 11, 2000,
to November 18, 2001.
5. Entitlement to a rating in excess of 10 percent for
bilateral eye infections for the period from November 18,
2001, to March 31, 2007.
6. Entitlement to a compensable rating for bilateral eye
infections for the period from April, 1, 2007, to include
restoration of a 10 percent rating.
7. Whether new and material has been received to reopen a
claim for service connection for a left knee injury.
8. Entitlement to service connection for depressive
disorder/PTSD to include as secondary to service connected
disability
9. Entitlement to service connection for gastrointestinal
manifestations to include as secondary to service connected
disability.
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The Veteran served on active duty from July 1976 to January
1980.
This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from rating action by the
Department of Veterans Affairs (hereinafter VA) Regional
Office in North Little Rock, Arkansas, (hereinafter RO).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
As explanation for the manner in which the issues have been
listed above, the procedural history will be summarized. A
January 2001 rating decision in part found that new and
material evidence had not been received to reopen a claim for
service connection for refractive error of the eye. The
Veteran submitted a notice of disagreement with this decision
in May 2001. As such, a statement of the case that addressed
this issue should have been completed. Manlincon v. West, 12
Vet. App. 238 (1999). Instead, this issue was addressed in
rating decision in August 2001. A statement of the case is
required to contain "[a] summary of the applicable laws and
regulations . . . and a discussion of how such laws and
regulations affect the determination." See 38 C.F.R. §§
19.29(b), 19.31 (2008). The issuance of a rating decision
therefore does not cure the requirement to provide the
Veteran with a statement of the case.
In February 2002, the Veteran filed another notice of
disagreement with the denial of his petition to reopen his
claim for service connection for refractive error in an
August 2001 rating decision. He also in this statement
expressed disagreement with those portions of the August 2001
rating decision that denied entitlement to service connection
for residuals of a left knee injury, assigned a 30 percent
rating for his service connected pseudofolliculitis barbae
with cystic acne vulgaris and the assignment of an initial
compensable rating for his service connected eye infections.
As such, a statement of the case addressing the issues should
have completed; instead, these issues were addressed in a May
2002 rating decision. See Manlincon, supra. Moreover, a
March 2002 letter from the RO incorrectly found that the
Veteran's claims had been "withdrawn" for failure to submit
a VA Form 9 within the "allowed" time frame. Rather than
having been "withdrawn," in light of the failure to address
these claims by a statement of the case, the claims were
still pending at that time.
Thereafter, a February 2004 rating decision increased the
rating for pseudofolliculitis barbae with cystic acne
vulgaris effective to 60 percent from August 30, 2002, and
increased the rating for bilateral eye infections to 10
percent effective from November 19, 2001. The February 2004
rating decision deferred action on the claim for
gastrointestinal manifestations, denied service connection
for depressive disorder/PTSD and found that new and material
evidence had not been received to reopen a claim for service
connection for residuals of a left knee injury. A March 2004
rating decision denied service connection for the claimed
gastrointestinal manifestations. In January 2005, the
Veteran submitted argument requesting that his service
connected disability ratings be considered as permanent. He
also described a worsening of his service connected
conditions and requested that service connection be granted
for depressive disorder/PTSD and gastrointestinal
manifestations as secondary to service connected disability.
These statements represented a timely notice of disagreement
with the February and March 2004 rating decisions, and the
relevant issues referenced by the Veteran in his January 2005
statement as discussed above should thus have been addressed
in a statement of the case. Manlincon, supra. Instead,
these issues were addressed in a July 2005 rating decision.
From the above, the RO upon remand must, to the extent the
claims are not allowed, complete a statement of the case
addressing issues, as listed on the title page, 1 and 2, 4
and 5 and 7 thru 9 as required by the controlling legal
authority. Manlincon, supra. As the resolution of the
increased rating issues that must be remanded for the
completion of a statement of the case could potentially
affect the resolution of issues 3 and 6, the Board must defer
adjudication of these issues pending the completion of the
action required of the RO as directed below as they are
"inextricably intertwined" with the claims that must be
remanded. Harris v Derwinski, 1 Vet. App. 80 (1991).
The Veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
For the reasons stated above, this case is REMANDED for the
following development:
1. To the extent the issues are not
granted, the RO should issue a
statement of the case and notification
of the appellate rights with respect to
the issues as listed on the title page
1 and 2, 4 and 5 and 7 thru 9. The
Veteran is reminded that to vest the
Board with jurisdiction over any of
these issues, a timely substantive
appeal must be filed. 38 C.F.R. §
20.202 (2008). If the Veteran perfects
the appeal as to any of these issues,
the case must be returned to the Board
for appellate review of any such issue.
2. Consistent with the action
requested above and to the extent there
is not a complete grant of all benefits
sought by the Veteran in connection
with these claims, the RO should
complete a supplemental statement of
the case addressing the claims for
entitlement to a rating in excess of 30
percent for pseudofolliculitis barbae
with cystic acne vulgaris for the
period beginning April 1, 2007, to
include restoration of a 60 percent
rating and entitlement to a compensable
rating for bilateral eye infections for
the period from April, 1, 2007, to
include restoration of a 10 percent
rating. Thereafter, the case must be
returned to the Board.
No action is required by the Veteran until he receives
further notice; however, he may present additional evidence
or argument while the case is in remand status at the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).